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Atheism as grounds for asylum


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Just a short one to observe that the Afghan atheist case is a truly great result. I haven’t myself heard of a case of an atheist getting asylum on that ground before. It is also fantastic to see the students at the Kent Law Clinic getting such a good outcome. I’ve worked with them a few times and they are a great bunch.

In pure law terms it isn’t exactly surprising, though. What is known in the trade as the Qualification Directive (full title Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted) explicitly provides for an atheist to be granted asylum if it can be shown he or she is at risk of being persecuted for that reason.

clinic_8The background is that the Refugee Convention only entitles a person to asylum if he or she can show risk of persecution for one of five reasons. Religion is one of those reasons. The others are race, nationality, political opinion and membership of a particular social group.

The EU definition of ‘religion’ for this purpose is set out at Article 10(1)(b) and it is pretty broad:

the concept of religion shall in particular include the holding of theistic, non-theistic and atheistic beliefs, the participation in, or abstention from, formal worship in private or in public, either alone or in community with others, other religious acts or expressions of view, or forms of personal or communal conduct based on or mandated by any religious belief

For good measure Article 10(2) then goes on:

When assessing if an applicant has a well-founded fear of being persecuted it is immaterial whether the applicant actually possesses the racial, religious, national, social or political characteristic which attracts the persecution, provided that such a characteristic is attributed to the applicant by the actor of persecution.

Our own Supreme Court recently adopted a very wide definition of religion as well, but specifically and explicitly for the purpose of the Places of Worship Registration Act 1855. See paragraph 57 of R (on the application of Hodkin & Anor) v Registrar-General of Births, Deaths and Marriages [2013] UKSC 77 (the recent Scientology case from December 2013):

For the purposes of PWRA, I would describe religion in summary as a spiritual or non-secular belief system, held by a group of adherents, which claims to explain mankind’s place in the universe and relationship with the infinite, and to teach its adherents how they are to live their lives in conformity with the spiritual understanding associated with the belief system. By spiritual or non-secular I mean a belief system which goes beyond that which can be perceived by the senses or ascertained by the application of science. I prefer not to use the word “supernatural” to express this element, because it is a loaded word which can carry a variety of connotations. Such a belief system may or may not involve belief in a supreme being, but it does involve a belief that there is more to be understood about mankind’s nature and relationship to the universe than can be gained from the senses or from science. I emphasise that this is intended to be a description and not a definitive formula.

‘Religion’ is very broadly understood in legal circles these days. But it is clear that the EU refugee law definition goes further than the Supreme Court definition for the purposes of registering places of worship. Atheists are specifically excluded by the Supreme Court.

The very different contexts to the two definitions could perhaps explain those differences. It is important in refugee law to have as expansive a definition as possible because that saves lives and the motives of the persecutor are often indiscernible. It makes sense to say that an atheist has been persecuted ‘for reasons of’ religion if persecuted because of being an atheist.

Arguably, of course, it would also make sense for atheists to be able to register marriages in the manner of their choosing in a public celebration of relationship…

Interested in refugee law? You might like Colin's book, imaginatively called "Refugee Law" and published by Bristol University Press.

Communicating important legal concepts in an approachable way, this is an essential guide for students, lawyers and non-specialists alike.

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Colin Yeo

Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder of the Free Movement immigration law website.